Category Archives: Employment Law

Tennessee Pregnant Workers Fairness Act Becomes Law on October 1st

On October 1, 2020 the Tennessee Pregnant Workers Fairness Act becomes law.  Passed this summer, the new law requires every employer with 15 or more employees to make a reasonable accommodation for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions.  Consistent with the ADA, a reasonable accommodation does not have to be made if doing so will impose an undue hardship on business operations.

The law specifies that it is not imposing certain requirements on employers.  Specifically, employers are not required to:

  1.  create a new position for the employee, including a light duty position, unless a light duty position would be provided for another equivalent employee;
  2. hire new employees that would not otherwise have been hired;
  3. discharge an employee, transfer an employee with more seniority, or promote another employee who is not qualified to perform the new job;
  4. compensate an employee for more frequent or longer breaks, unless the break would otherwise be compensated;
  5. construct a permanent, dedicated space for expressing breast milk.

In addition to the requirement to provide a reasonable accommodation unless doing so would create an undue hardship, the Act also details the following unlawful employment practices:

  1. requiring an employee to take leave if another reasonable accommodation can be provided;
  2. taking an adverse action in the terms , conditions or privileges of employment because an employee has requested or used/received a reasonable accommodation, including, but not limited to, counting an absence related to pregnancy under a no fault attendance policy.

Significantly, the “no adverse action based on a no fault attendance policy” may be broad enough to require payment of a perfect or regular attendance bonus if the only absences are due to the reasonable accommodation.

Employers can require employees who request a reasonable accommodation of a temporary transfer to a vacant position, job restructuring, light duty, or an accommodation that requires time away from work to submit a certification from a health care provider supporting the request.  However, the employer must engage in a good faith interactive process with the employee to determine if a reasonable accommodation is available while awaiting the certification.

A suit alleging the Act has been violated can be filed in Circuit or Chancery Court and must be filed within one year of the adverse employment action.  Filing a charge with the THRC is not required before suit can be filed.  A successful plaintiff can recover back pay, compensatory damages, prejudgment interest, reasonable attorney’s fees and other legal or equitable relief that will effectuate the purposes of the Act.

Since October 1st is fast approaching employers should review their policies to determine what changes need to be made and train their supervisors on these new requirements.

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DOL Revises The FFCRA Definition of Health Care Provider

Last month the Southern District of New York ruled that four parts of the FFCRA were invalid.  While that ruling was only effective in that judicial district it resulted in the U.S. Department of Labor reviewing the FFCRA.  On September 11th the DOL issued  a temporary rule revising the  FFCRA .

As detailed below, the DOL reaffirmed most of the portions the Court found invalid, but revised the definition of ” health care provider” for the purpose of determining what employees are exempt from the FFCRA.

To determine what employees are  exempt from the FFCRA the DOL now defines “health care provider” as those employees defined as health care providers under the FMLA (licensed doctors of medicine or osteopathy, among others) as well as those employees who make medical diagnoses and those employees who are “capable of providing health care services”.  The focus is on the duties of these employees , and the employees must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care”.

The DOL interprets “health care services” to include relevant services related to patient care, even if not performed by employees with a license, registration or certification.

So who is and is not a health care provider for purposes of the exemption? The DOL gives the following examples:

Health Care Providers– doctors, nurses, nurse assistants, medical technicians, and laboratory technicians.

Not Health Care Providers- IT personnel, human resources, building maintenance/janitorial staff, cooks, food service workers, records managers and staff, billing staff and consultants.

This revision is effective immediately.  So if you have a business that provides health care and you have previously been treating all of your employees as exempt under the FFCRA,  you will need to reevaluate that position as soon as you can.

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Supreme Court Holds Title VII Protects Gay and Transgender Employees

On June 15th in a 6-3 decision the Supreme Court held in Bostock v Clayton County, GA that Title VII prohibits discrimination against gay and transgender employees.  Writing for the majority Justice Neil Gorsuch based the opinion on the fact that Title VII prohibits discrimination on the basis of “sex”.  In the very first paragraph of  the majority opinion Justice Gorsuch wrote:

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

While this is a groundbreaking ruling, the Court did not resolve all legal issues involving gay and transgender rights.  Justice Gorsuch noted that employers with strong religious objections to these rights might have some protection under the Religious Freedom Restoration Act of 1993 (RFFA).  In 2014 the Supreme Court held that under the RFFA Hobby Lobby did not have to pay for insurance coverage for contraception under the Affordable Care Act because doing so violated Hobby Lobby’s religious freedom.

In Bostock the Court also declined to address whether an employer violates Title VII by requiring sex segregated bathrooms and locker rooms and sex specific dress codes.  The opinion is expressly limited to a situation where an employer fires an employee for being gay or transgender.

To ensure compliance with this change in the law employers should update their EEO, Anti-Harassment and other similar policies to ensure that gay and transgender employees are expressly protected.

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The IRS Weighs In On What Information An Employer Can Request To Substantiate FFCRA Eligibility

Yesterday the IRS issued some FAQs on the FFCRA.  On the important question of what documentation is needed from the employee in order for the employer to seek tax credits for the paid leave provided under the FFCRA,  the IRS said as follows:

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

While the IRS is the entity that will approve or deny the request for the tax credit, the DOL is responsible for enforcing the FFCRA.  Hopefully, the DOL’s regulations will be consistent on this issue, and it is my expectation that they will be.

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FFCRA and CARES ACT WEBINAR

Yesterday, my partner Kevin Perkey, who focuses his practice on tax law, and I presented a Webinar entitled COVID-19: THE IMPACT ON YOUR BUSINESS AND EMPLOYEES.  The webinar focuses on the FFCRA and certain provisions of the CARES Act.  Thank you to the hundreds of you who watched.   If you were unable to watch the Webinar, or want to see it again, it can be accessed at the following link. https://vimeo.com/401032682/9969809358

Also, one clarification on the small business (under 50 employees) exception.  While it does apply to both Expanded FMLA and Emergency Paid Sick Leave, it only applies when leave is requested because the child’s school or place of care is closed, or the child care provider is unavailable, due to COVID-19 related reasons.  And if that is the reason you still must show that one of the following apply:

 

       1.The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

       2.The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  

      3.There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 

Again, the DOL expects you to act in good faith when claiming this exemption and in all of your efforts to comply with the FFCRA.

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DOL Clarifies FFCRA Small Business and Health Care Provider Exemptions

Late Saturday afternoon the Department of Labor issued more FAQs on the FFCRA.  These additional FAQs provide guidance on two subjects I have received many questions about:  1. What employees qualify for the “health care provider and emergency responder exemption”?; and 2.  What must I show for the small business exemption to apply?

The health care provider and emergency responder exemption allows the employer to designate certain employees as exempt from the FFCRA’s provisions.  In a bit of a surprise the DOL clarified that, for the purposes of the FFCRA health care provider and emergency responder exemption, a health care provider is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy , or any similar institution, employer, or entity.”   Furthermore, any individual employed by an entity that contracts with any of the above institutions or employers is also included in the definition of “health care provider” for the purposes of the FFCRA exemption.

Emergency responder is equally broad, and includes anyone in law enforcement, firefighters, paramedics, EMTs, 911 operators, and military and national guard among others.

On the small business exemption the Department of Labor states:

 

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
    1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
    2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
    3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 

The Department of Labor makes clear that the business does not have to “apply” for the exemption, and does not have to call or write the Department to seek exempt status.  Instead, an authorized officer must make the call that one of the three tests set forth above will be met.  The Department does stress that it expects employers claiming this exemption to have documentation to support their claim.  This could include, for example, financial documentation showing that complying with the Act and granting leave will cause business expenses and financial obligations to exceed available business revenues, a description of how letting the employee with specialized skills take leave will create a substantial risk to the business’s ability to continue to operate, the lack of availability of qualified replacements who are ready, willing and able to work, and other similar documentation.

The Department of Labor has also stated that it will grant a 30 day grace period on enforcing penalties to those employers who have violated the FFCRA but have acted in “good faith ” in doing so.  With this small business exemption, make sure there are facts to support your claim so that you are at least acting in good faith in the event the Department determines your business is not exempt.

 

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DOL Updates FFCRA FAQs

Last night the DOL issued updated FAQS for the FFCRA ( that’s a lot of alphabet soup!). You can find the new FAQs here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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DOL Releases Required FFCRA Poster

The DOL just released  the FFCRA poster that covered employers ( those with less than 500 employees) must post.  It must be posted  in a conspicuous place that is a high traffic area for employees .  This is usually the break room, the employee bulletin board- you know, where you post your other workplace required posters.

 

Here is the link https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

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DOL Says FFCRA Is Effective April 1st!

On March 18th the President signed the Families First Coronavirus Response Act ( FFCRA) which provides for expanded FMLA and Emergency Paid Leave in certain limited circumstances related to the Coronavirus pandemic.  You can read my recent blog posts on the FFCRA for more detail.  Yesterday the DOL issued some guidance, which provided some clarity on a few issues, including the effective date of the FFCRA.

The DOL states that the FFCRA will be effective April 1st, which is one day earlier than everyone expected.  This is not a case of the DOL changing the rules, since the FFCRA states that it will be effective “no later than 15 days from passage”.  Still, you have one less day to prepare.

The  DOL also clarified the following issues:

  • Overtime must be included when calculating pay due to employees under the FFCRA
  • Paid Sick Leave is capped at 80 hours
  • Paid Sick leave and Expanded FMLA run concurrently

And, the DOL had this to say about the potential small business exemption from the FFCRA that I have had so many questions about:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

So, more details are forthcoming about the potential exemption, but apparently submitting information to the DOL in order to “apply” for the exemption will not be necessary.

The DOL is supposed to issue FFCRA regulations in April.  Until then, you can get additional details from the DOL by accessing this link

www.dol.gov/agencies/whd/pandemic/ffcra-questions

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Knox County Essential Businesses Under Safer At Home Order

On Monday March 23rd Knox County Mayor Glenn Jacobs issued a ” Safer At Home ” Order. The Order takes effect at 12:01 a.m. on March 24th ( midnight tonight).  Under the Order the following are deemed Essential Businesses which can continue to operate with certain restrictions in place:

SECTION 4

This Order does not apply to the following sectors and businesses and their employees as essential services to protect the health and well-being of all individuals residing or working in Knox County.

  • Federal and state offices and services, and private companies or individuals performing under federal, state, or local government contracts;
  • Essential government functions including, but not limited to, law enforcement, public transportation, and businesses that provide government programs and services, including functions assisting economically disadvantaged populations and individuals experiencing homelessness;
  • Companies providing media, communication and telecommunication services;
  • Grocery and beverage stores, farmers markets, food banks, caterers, convenience stores selling food, agriculture, food manufacturing and processing, feed mills, and other businesses that directly support the food supply, including but not limited to farming, livestock, and food cultivation;
  • Health care, mental and behavioral health, biomedical research, laboratory services, and other businesses that directly support the healthcare industry including, but not limited to, health information technology, staffing and supplies;
  • Sanitation and waste removal;
  • Energy, water, and sewage businesses and services;
  • Pharmacies, medical supply, and other businesses that directly support the drug and medical supply pipeline;
  • Vehicle fuel, support, and service stations, vehicle parts and repair businesses, and vehicle sales, leasing and rental businesses;
  • Banks, savings and loans, insurance companies, accounting businesses, and other business that directly support the insurance and financial services sectors;
  • Real property marketing, leasing, purchase, and sale services;
  • Legal and judicial services;
  • Laundromats, laundry, and cleaning services;
  • Home and business structure and equipment repair, hardware, building supply, and appliance sale and repairs;
  • Warehousing and storage facilities;
  • Construction, architectural, engineering, or surveying services;
  • Product logistics, transport, and distribution businesses;
  • Parcel transportation and delivery businesses;
  • Veterinary and pet supply business and services;
  • Home and business cleaning and maintenance services;
  • Educational institutions, public and private K-12 schools, private colleges and universities, trade schools, post-secondary, and technical colleges, but only as needed to facilitate online or distance learning and essential functions;
  • Landscaping and nurseries;
  • Production, distribution, and sale of household consumer goods such as cleaning and personal care products;
  • Essential building maintenance and security;
  • Individuals whose job functions require them to be at their work location and who are essential to preserving the information systems, accounting, and human resource infrastructures of any business which is otherwise in substantial compliance with this order;
  • Nonprofit entities providing support and assistance for the COVID-19 epidemic; and
  • Other businesses and services that may be determined are essential for the continued safety and security of Knox County.

 

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